R. v. Smith, 2013 NSSC 443

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Smith, 2013 NSSC 443 Date: 20131004 Docket: CRH 410394 Registry: Halifax Between: Her Majesty the Queen v. Gerald Gates Smith D E C I S I O N Restriction on publication: 486 CCC Publication Ban 486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. Judge: The Honourable Justice Glen G. McDougall Oral Decision: October 4, 2013 in Halifax, Nova Scotia Written Decision: March 10, 2014 Counsel: Karen Quigley, Esq., for the Provincial Crown Craig Garson, Q.C., for the Accused By the Court : Introduction

[ 1 ] The accused, Gerald Gates Smith, (henceforth sometimes referred to as “ Mr. Smith ” or “ the accused ” ) stands charged: 1. that he between the 30 th day of November 1980 and the 4 th day of January 1983 at, or near Dartmouth, in the County of Halifax in the Province of Nova Scotia, did indecently assault MEF, a male person, contrary to

Section 156 of the Criminal Code . 2. AND FURTHER THAT AT DARTMOUTH AFORESAID, between the 30 th day of November 1980 and the 31 st day of December 1985 did commit

an act of gross indecency with MEF, contrary to

Section 157 of the Criminal Code . 3. AND FURTHER THAT AT DARTMOUTH AFORESAID, between the 4 th day of January 1983 and the 31 st day of December 1985 did commit a sexual assault on MEF, contrary to

Section 246.1 of the Criminal Code . [ 2 ] During the course of the trial, counsel agreed on the admission of certain Big Brothers Big Sisters records without the need for a voir dire to determine admissibility. It is evidence that will be considered in deciding the charges against the “ accused. ” Evidence [ 3 ] Mr. F met Mr. Smith when his mother arranged for him to have a Big Brother through the Big Brothers Big Sisters organization. Mr. F ’ s mother, VN, testified that she had separated from his father in the late 1970s and wanted him to have a male role model. Mr.

F testified that he had virtually no contact with his father, who had moved to Ontario. All three of his brothers were also matched with Big Brothers at one time or another. Mr. F testified that he had virtually no contact with his father. When he was matched with a Big Brother, which he recalled happening at about the age of nine, Mr. F was matched with Mr. Smith. He identified Mr. Smith in the courtroom. He was nine years old in December, 1980. [ 4 ] Mr. F said he would see Mr. Smith at least once every two weeks. Mr. Smith would pick him up and they would go to movies or bowling and sometimes to Mr.

Smith ’ s house in the Woodlawn area. At times they would drive out of the city to visit Mr. Smith ’ s grandmother. He stated that Mr. Smith ’ s wife would be there but they did not have any children at the time. The visits would last a couple of hours. He testified that he did not recall any overnight visits. On cross-examination it was pointed out that Mr. F told the police that Mr. Smith had picked him up for a weekend, whereas he testified at trial that he did not recall being with Mr. Smith for a weekend. He said he must have made the assumption that he had spent a weekend with Mr.

Smith when he spoke to the police but that he had no actual recollection of this. [ 5 ] Mr. F alleges two incidents of sexual misconduct against him by Mr. Smith. Mr. Smith testified in his own defence. He denied both allegations. [ 6 ] Mr. F first described an incident at Mr. Smith ’ s house. He said he was sitting on the floor in the basement which he described as being like a TV room. He said Mr. Smith gave him a “ girlie magazine. ” Mr. Smith went down the hall to what Mr. F thought was a bathroom, though he was not sure. A couple of minutes later Mr. Smith called him down the hall. He said he found Mr.

Smith there masturbating. After a couple of seconds, Mr. F said, he turned around and went back to where he was before. He said he did not know what he was seeing at the time. Mr. F added that his memory of the room was “ not good. ” He said the magazine came from a toolbox in a room on the lower level of the house. [ 7 ] There was evidence from Mr. Smith, his wife Donna Smith and his brother Kendall Smith to the effect that the basement at the house in question was never finished. They all testified that it had no bathroom, no television, no couch and no tool room. Mrs.

Smith described it as a damp basement with a concrete floor containing a freezer and a sump pump. [ 8 ] Mr. F testified on cross-examination that he could not recall whether the basement was finished. He was directed to his

statement to the police that he believed the basement was finished. He testified that he had a vague recollection of a television and “ other things ” but admitted that it was possible that the basement was not finished. His police statement also indicated that he recalled a bathroom in the basement and that he saw Mr. Smith masturbating in the bathroom mirror. He maintained that in his recollection “ it felt like a bathroom. ” However, he had not mentioned a mirror in his direct examination.

While his police statement made five references to a mirror he admitted on cross-examination that he was not sure on this detail. [ 9 ] Mr. F was also cross-examined as to the location of the toolbox from which he said Mr. Smith had taken the magazine. He believed the toolbox was red. He recalled a room that “ felt like a tool room. ” There was a toolbox that he thought was red though he was not sure. He could not recall whether it was on the floor or on a shelf. He recalled Mr. Smith unlocking the toolbox though he was not sure whether he had a key. He said he did not see Mr.

Smith take the magazine from the toolbox. Mr. Smith denied owning such a toolbox and Donna Smith testified that she did not recall a red toolbox being in the house. Similarly, Kendall Smith said he did not recall tools at this brother ’ s house. [ 10 ] It was put to Mr. F that the basement at Mr. Smith ’ s was unfinished with no bathroom or tool room. He conceded that this might have been correct. He was again referred to his police statement, in which he said he recalled a TV room that was “ like a little living room. ” He had also made reference to a couch, another detail that he was now unsure of.

He also referred to watching TV in the TV room in his preliminary inquiry testimony. He agreed that he was now not sure of this. He agreed that it was possible that there was never a TV in the basement despite his own testimony at the preliminary inquiry that he watched TV a lot with Mr. Smith. More generally, he said that he sometimes “ put little things together ” in his memory in the wrong place. He repeated, however, that there was a time when he was sitting on the floor watching TV when Mr. Smith threw a “ porno mag ” at him. He said he was sure this happened. [ 11 ] Mr.

F also stated on cross-examination that he did not remember what happened after the basement incident. In his police statement, however, he recalled Mr .Smith ’ s wife calling them up for supper. [ 12 ] Mr. F described a second incident which he said happened after the basement incident, though he did not know how long after. While they were driving, he said, Mr. Smith pulled off the highway in the area of what is now the Dartmouth Crossing commercial development. Mr. F did not recall where they were going. He recalled a gravel pit and a concrete tube in the area. He said Mr.

Smith put his hands on his hips, pulled his pants down and performed oral sex on him. He did not recall how long they were there or if any words were spoken. Mr. F said on cross-examination that he did not remember certain details of the alleged incident at the gravel pit including how long it took, what happened afterwards and where they were before it happened. [ 13 ] Mr. F agreed on cross-examination that his recollections of the surroundings during both of the alleged incidents were cloudy though he said the incidents themselves were not. [ 14 ] Mr. F said he would see Mr.

Smith occasionally after the Big Brother match ended in December 1984. Mr. Smith and Mr. F last saw one another in the Fall of 1985. He said Mr. Smith was driving a white Jeep. Mr. Smith denied that he ever owned a white Jeep. Mr. F had recalled going through a Tim Horton ’ s drive-through with Mr. Smith at this time. The defence led evidence from Thomas Cahill that he opened the first Tim Horton ’ s drive-through in Nova Scotia in 1989, some four years later. [ 15 ] Mr. F testified on direct examination that he phoned Mr. Smith at work about two years before trial and told him he intended to call the police.

He said Mr. Smith was happy to hear from him at first. After he told him he intended to call the police, he said, Mr. Smith asked if he was “ the one with the brothers, ” and asked how his mother was. Mr. F said he did not recall the entire conversation. He said he was nervous and that he hung up after a pause. He also said he called Mr. Smith for “ some closure ” and because he wanted Mr. Smith to know that he remembered what had happened. He added that he “ just wanted him to apologize I guess. ” Mr. Smith ’ s evidence was that Mr.

F made a comment to the effect of “ you ruined my life, now I ’ m going to ruin yours. ” On cross-examination Mr. F said he did not remember saying this. [ 16 ] Mr. F admitted to having issues with alcohol, gambling, relationships and finances although he said he had no criminal record. He said he could not seem to “ keep it together. ” His mother, VN, also testified that he had problems of this nature. Law

[17] The accused testified. This means that I must apply the analysis in the R. v. W.(D.), (SCC), [1991] 1 S.C.R.742, which I summarize as follows: 1. If I believe Mr. Smith, I must acquit; 2. If I do not believe Mr. Smith but am left with a reasonable doubt by his evidence, I must acquit; 3. Even if I am not left in doubt by Mr. Smith’s evidence, I must consider whether the evidence that I do accept convinces me beyonda reasonable doubt that the elements of the respective offences have been proven. [18] I note that a “reasonable doubt” is “not an imaginary or frivolous doubt.

It must not be based upon sympathy or prejudice. Rather, it is based on a reason and common sense. It is logically derived from the evidence or absence of evidence.” (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at para 39) Even if I believe the accused is probably guilty that is not sufficient to convict,because the Crown has not satisfied me of his guilt beyond a reasonable doubt. [19] This is a case in which historical sexual offences are alleged. I take note of the Supreme Court of Canada decision in R. v. W.(R.), (SCC), [1992] 2 SCR 122, Justice McLachlin (as she then was) said, at p. 134: ...

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. [20] Based on this reasoning, the Nova Scotia Court of Appeal held in R. v.

J.M.M., 2012 NSCA 70, that it was an error for a trialjudge to treat a 27-year-old witness’s evidence with “an uncritical and superficial eye... by forgiving her inconsistencies and ignoring herinability to recall events, dates, and places” when she testified to alleged sexual offences occurring when she was between the ages of sixand 16 (see para 49). The Crown agrees that the passage of time – in this case approximately 30 years – complicates the prosecution ofhistorical sexual offences.

Argument and Conclusion [21] Defence counsel submits that by any standard, the Crown has failed to prove the allegations beyond a reasonable doubt. Hesays Mr. F is not a credible witness. He points to evidence of VN, Mr. F’s mother, respecting Mr. F’s problems with drinking, gambling,and relationships. Further, when Mr. F’s evidence is assessed in light of the evidence of other witnesses, there are inconsistencies withthe other evidence, as well as internal inconsistencies. For instance, Mr.

F stated on cross-examination that he had no recollection of Mr.Smith asking him to do anything to him; this is inconsistent with Ms. N’s evidence of what he recounted to her. [22] The defence also points to the inconsistency between Mr. F’s recollection of a finished basement in Mr. Smith’s house with allthe other evidence of the condition of the basement, which was that it was a damp, unfinished, concrete-floored basement that did notcontain a bathroom, a tool room, or a couch. The evidence does not support the Crown’s theory that the alleged incident of Mr.

Smithmasturbating in the bathroom occurred in the basement, as Mr. F recounted. Also contrary to Mr. F’s evidence that Mr. Smith retrievedthe magazine from a red tool box, the evidence of Mr. Smith, his wife, and his brother, was that there was never a red tool box in thathouse. [23] There was also evidence from Mr. F in his police statement of going through a Tim Horton’s drive-through with Mr. Smith. The defence points out that Mr. Cahill’s evidence was that he opened the first such drive-through in Nova Scotia in 1989, long after Mr.F had last seen Mr. Smith in 1985.

This is another example of what the defence says is a tendency by Mr. F to remember things that didnot happen. He also points to Mr. F’s evidence that he went to the Tattoo with Mr. Smith, which was contradicted by the evidence ofDonna Smith. A further example is Mr. F’s descriptions of going rabbit-hunting and fishing with Mr. Smith. The defence points out that

the description of rabbit-hunting resembles an account Mr. Smith had included in a book that he had published. [ 24 ] The defence also points to Mr. F ’ s claim in his police statement that Mr. Smith had picked him up for a weekend which was contradicted by the evidence of VN and Donna Smith that there had never been overnight visits. Mr. F ’ s explanation on cross- examination was that he had assumed that this happened. [ 25 ] When Mr. F described his last meeting with Mr. Smith in 1985, he said Mr. Smith picked him up in a white Jeep.

Donna Smith ’ s evidence, however, was that they had a new station wagon with wood on the outside at the time. [ 26 ] For all these reasons, the defence submits that Mr. F ’ s evidence is not reliable. Counsel goes on to point to internal inconsistencies in Mr. F ’ s own evidence. He notes that at the preliminary inquiry Mr. F referred to his memory of some events as “ cloudy. ” This was particularly in reference to the alleged basement incident. He did not adopt this characterization at trial. [ 27 ] Among the alleged internal inconsistencies in Mr.

F ’ s evidence was his indication to the police that he believed the basement was finished, while at trial he said it “ felt like ” a finished basement. In his description of the incident, he said he recalled sitting on the floor when Mr. Smith handed him a magazine and went down the hallway to the room where Mr. F said he saw him masturbating. On cross-examination he said it “ felt like a bathroom ” and that he “ assumed it was a bathroom, ” but on reflection he did not know what kind of room it was.

This is contrasted with his earlier descriptions of a finished basement with a bathroom. [ 28 ] As another example, Mr. F drew a diagram for the police showing the bathroom he recalled in the basement. He showed the mirror on the opposite wall from the location of the sink and mirror in the mirror in the bathroom that did not exist on the main floor of the house. This, counsel submits, creates a significant internal inconsistency with his description to the police of seeing Mr. Smith masturbating in front of the mirror. [ 29 ] In his police statement, Mr. F said that after he saw Mr.

Smith masturbating he went back to the TV room, which he later described as being like “ a little living room, ” containing a TV and a couch. He also referred to a TV in the basement in his evidence at the preliminary inquiry. At trial he conceded that he was not now certain that there was a TV in the basement. [ 30 ] Counsel also points to inconsistencies in Mr. F ’ s evidence about what he was doing when the tool box appeared; at trial he said he did not remember, while at the preliminary inquiry he said he was watching TV. [ 31 ] A further alleged inconsistency arises in Mr.

F ’ s recollection of what happened after he saw Mr. Smith masturbating. At trial he said he did not remember anything happening afterwards. In his police statement, however, he said he remembered going upstairs to have supper. He recalled Donna Smith opening a door and calling them up for supper. Even if it were suggested that the incident did not happen in the basement, defence counsel points to Mr. F ’ s testimony that he was “ a hundred per cent sure about a basement. ” [ 32 ] As to the second incident, in the quarry, defence counsel notes Mr.

F ’ s own evidence that he had very little memory of the incident and submits that it is not a believable story, in view of the frailties of Mr. F ’ s other evidence. [ 33 ] Overall, the defence position is that Mr. F ’ s evidence cannot be relied upon. Counsel notes the several different versions of his evidence regarding whether he was drinking when he called his mother to tell her about the allegations he makes against Mr. Smith.

While he initially testified that he did not think he had been drinking, he said on cross-examination that he probably was, because he would not have had the courage to talk to her otherwise. [ 34 ] The defence argues that Mr. Smith ’ s denial should be believed. There were no complaints about Mr. Smith in the Big Brothers Big Sisters records and, in fact, the information in the documents is positive. The defence notes that when Mr. Smith ’ s time as his Big Brother ended, Mr. F ’ s request for a new match was “ someone like Gerry. ” [ 35 ] The Crown takes the position that Mr.

F was a witness who was doing his best to recall and to be truthful. The Crown notes

that credibility is concerned with a witness ’ s veracity, while reliability is concerned with accuracy. It is possible for a witness to be credible but mistaken. The Court must consider the totality of the evidence. The Crown notes that Mr. F was nine years old in 1980, coming from a family on social assistance whose father had left. By contrast, Mr. Smith was educated and 27 years of age. The Crown submits, by reference to the ongoing notes in the records, that Mr. F underwent a changing attitude after his initial excitement about having a Big Brother.

The defence replies, reasonably, that the notes relating to a child growing into an adolescent do not point to any change caused by sexual abuse. [ 36 ] The Crown submits that the evidence of Mr. F ’ s mother and of the officer who took his statement indicates that he was sincere. Generally, the Crown submits that Mr. F ’ s evidence should be found to be credible and reliable, and suggests that it is corroborated by the evidence of other witnesses.

Counsel emphasizes the passage of time and urges the Court to be mindful that this is the testimony of an adult witness who was only about nine or ten years old at the time of the alleged incidents. Furthermore, counsel suggests Mr. F ’ s recollection of the details of the incidents was precise while much of the cross-examination dealt with peripheral details amounting to an attempt to weave “ a cloud of uncertainty ” over the head of an adolescent some 30 years later. The alleged internal inconsistencies, the Crown suggests, are actually evidence of Mr.

F ’ s attempt to tell the truth based on his recollection of events long in the past. [ 37 ] The Crown alleges that inconsistencies also arise in Mr. Smith ’ s evidence. Counsel argues, for instance, that Mr. Smith had difficulty answering questions on cross-examination about the location of the bathroom mirror. She also asserts that inconsistencies exist between Mr. Smith ’ s description of the size of the bathroom and that provided by his wife. The Crown also submits that there were inconsistencies and evasiveness in the evidence of Mr. Smith respecting his telephone conversation with Mr.

F and his subsequent actions in contacting counsel. [ 38 ] The Crown ’ s burden is to prove guilt beyond a reasonable doubt. Even if I do not believe Mr. Smith ’ s evidence, if I am left with a reasonable doubt he must be acquitted. On the totality of the evidence, I am left with a reasonable doubt. I have reviewed the evidence with full awareness of the passage of time, and of the complainant ’ s youth at the time of the alleged offences.

I am nevertheless forced to conclude that the inconsistencies in his evidence, both internally and in relation to other evidence, can lead to no other conclusion than that a reasonable doubt exists. [ 39 ] I note in particular that the evidence adduced by the defence as to the layout of the Smith house at the relevant time was not seriously challenged, and there is no serious suggestion from the Crown that this evidence does not accurately describe the house, and particularly the basement.

That being the case, the complainant ’ s evidence bears very little relation to the actual physical circumstances in which he says the event occurred which he has described in a good deal of detail. This not only raises serious questions about the reliability of his evidence on this point, but about the reliability of his evidence generally. This unreliability is compounded by inconsistencies on other details. For instance, the evidence indicates that his claim to have gone through a Tim Horton ’ s drive-through with Mr. Smith in 1985 could not have possibly happened.

The accumulation of inconsistencies as detailed above goes not only to the occurrence of the alleged acts, but also leaves the complainant ’ s evidence generally unreliable. [ 40 ] I conclude, therefore, that a reasonable doubt exists and I find Mr. Smith not guilty on all three counts as contained in the Indictment. McDougall, J.